Defense Opening Statement

Elements of a strong defense opening statement in a criminal trial

Once the jury has been selected, a criminal trial begins with the prosecution’s opening statement. After the prosecution opens, the defense has an opportunity to make an opening statement. A strong defense opening statement will do the following:

  • Tell a story. Often the story will be about the process that led to the prosecution and its unfairness. For example, even if the thrust of the defense is “reasonable doubt,” the criminal defense attorney can use the opening statement to attack some aspect of the prosecution’s evidence and explain why it is unfair for the prosecution to ask the jury to convict on such evidence.
  • Plant the defense themes. A strong opening statement will use catch-phrases that will characterize the defense. For example, informants “sell their testimony”; the prosecutor “holds the jailhouse key”; the defendant was “in the wrong place at the wrong time”; the alleged victim “started the fight and the defendant ended it.”
  • Make concessions only with great caution. Conceding the indisputable during opening statement may start the jury thinking that the criminal defense attorney is helpful, reasonable and trustworthy, and that there really might be some merit to the defense. However, given the vagaries of trial and the difficulty of predicting areas where the prosecution’s evidence might fail, a better strategy is to focus the opening statement on points the defense will contest and omit any mention of points the defense must concede, rather than make an explicit concession.
  • Make the defense case concisely. A brief opening statement is usually a strong opening statement. Defense counsel should be able to deliver the opening without notes. This is the time to introduce themes and the theory of the defense, and to make an impression of confidence in the case. Speaking to the jurors face-to-face, without notes or a podium, allows the criminal defense attorney to converse with jurors, rather than preach to them. It shows confidence and builds rapport.
  • Humanize the defendant. An experienced defense attorney will always call his or her client by name (not “the defendant”) and mention facts that might engender sympathy and respect. For example, the opening statement might discuss the defendant’s job and the good he has done; point out his wife and mother; mention that he has never been arrested before or that he rose from poor roots by his own hard work.
  • Make no promises about the defendant testifying. Rarely should defense counsel promise that the defendant will testify. The defendant’s testimony is the main event at any trial. Promise it, and the jury will expect it. If the defense then breaks that promise, the jury will not overlook it.
  • Argue the defendant’s case. The “textbook” rule is that an opening should not be an argument of the case, but a preview of the evidence. A smart criminal defense attorney will ignore this rule as much as possible. The opening statement should be an abbreviated version of the closing argument.
  • End on a high note. A good way to conclude the defense opening statement is for counsel to tell the jury that the evidence will not prove the prosecution’s case and that the only fair verdict in this criminal trial will be “not guilty.”

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